Appeal-Judicial Review - Fairness - High-Volume Tribunals. Perrin v. Canadian Union of Public Employees
In Perrin v. Canadian Union of Public Employees (Fed CA, 2023) the Federal Court of Appeal considered a JR of a CIRB [Canada Industrial Relations Board] 'duty of fair representation' (s.37 of the Canada Labour Code) decision, here regarding COVID vaccination policy which the union did not grieve.
In this quote, the court asserts that the administrative Board (here, the federal CIRB) need not respond to all the issues raised by the parties - though it seems implicit that the Board must still consider them (just not respond to them in reasons for decision):
 ... Moreover, contrary to the applicants’ assertion, the Board did examine the Union’s conduct. It found that the Union had communicated regularly with its membership regarding the implementation of the policy, and that it had turned its mind to the issues raised by the members, including those who disapproved of the policy for various reasons. The Board was not required to refer to every document in the record, to respond to every argument or to make an explicit finding on each element leading to its conclusion (Vavilov at paras. 91, 128; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 16). There is no basis for concluding that the Board ignored evidence or that it failed to grapple with any of the issues raised by the applicants.. Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375)
In Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375) (Fed CA, 2023) the Federal Court of Appeal considered a relatively novel 'deference' argument that supports tribunal decisions - that of a combination of respect for the tribunal's expertise, and an impatient 'getting on with it' [what I have in other cases referred to as 'high-volume' tribunal deference]:
 The applicants allege in issue 2 that the CIRB violated their rights by improperly limiting their evidence. They point in this regard to time constraints imposed by the CIRB, to the requirement that the MEA file the evidence in chief of certain witnesses by affidavit, to the CIRB requiring the MEA to call its final witness before completing the examination of Mr. Murray, and to the Board’s decision to declare the MEA’s case closed when counsel refused to complete his examination of Mr. Murray. The applicants say that the curtailment of their evidence in this fashion is particularly troubling when the Board eventually premised its decision on the failure of the MEA to discharge its burden to establish that a maintenance of activities order was required.. Rassouli-Rashti v. Tayefi [this is an appeal from a court case, not an admin case - I add it here for contrast]
 With respect, I disagree.
 The CIRB is master of its own procedure and is entirely entitled to make rulings like these, particularly where it is concerned about the timely completion of hearings. The oft-repeated maxim that "“labour relations delayed are labour relations denied”" is particularly apposite in applications like the one in the case at bar, which have the effect of suspending the right to strike or lockout, with the frequent consequence of undermining progress at the bargaining table. The overarching purpose of the Code, as recognized in its preamble, is the encouragement of free collective bargaining, which lengthy delays in hearing and deciding section 87.4 applications may well hamper.
 Each of the procedural decisions that the applicants impugn was determined to be necessary by the CIRB to move the case forward. Given the length of the hearing, there was certainly more than ample basis for the CIRB to have been concerned about delay.
 Moreover, it bears noting that the CIRB is empowered under section 16.1 of the Code to decide cases without holding a hearing at all. This Court has frequently held that a decision of the CIRB to proceed without any hearing at all is not a violation of procedural fairness (see, for example, Watson at paras. 50–52 (citing to Maritime Broadcasting System Limited v. Canadian Media Guild, 2014 FCA 59, 373 D.L.R. (4th) 167 at para. 50); Nadeau v. United Steelworkers of America, 2009 FCA 100, 400 N.R. 246 at paras. 3–6; NAV Canada v. International Brotherhood of Electrical Workers, 2001 FCA 30, 103 A.C.W.S. (3d) 966 at para. 10). If the Board can proceed without any hearing, it stands to reason that it can require the filing of affidavits and set deadlines for completion of the evidence.
 I also note that the mere fact that a party commences a judicial review application does not entitle that party to a stay of proceedings before a labour board (see, for example, Canada Post Corporation, 2013 CIRB 697,  C.I.R.B.D. No. 25 at paras. 18–23; and Société Radio-Canada, 2002 CIRB 193,  C.I.R.B.D. No. 41 at paras. 20–34).
 The Board was therefore completely within its rights to insist that counsel for the MEA complete his case, and when he refused to do so, to close it for him. It was also entitled to make the other rulings regarding the filing of affidavits and completion of the evidence to which the applicants object.
 Thus, the arguments raised by the applicants in issue 2 of their memorandum of fact and law regarding the CIRB’s alleged limiting of the MEA’s right to put its case before the Board are without merit.
In Rassouli-Rashti v. Tayefi (Ont CA, 2023) the Court of Appeal considered an appeal against the lower court's exercise of it's 'trial management powers', here with an unrepresented party. This novel appellate issue (that of a 'trial management power', one apparently first raised by the appellate court) strikes me as an appellate sham. It avoids the substantial issues - which were whether the court fulfilled it's fairness duties to a presenting (ie. self-representing) party - by raising 'trial management' as a potential appellate issue. That is, the court made the issue that of whether the lower court's exercise of their 'trial management powers' was acceptable or not. As such, the Court of Appeal here opens the door to some unfairness being tolerable - outside the normal logic of appellate deference:
(iii) The trial judge erred in his conduct of the trial and in his failure to ensure trial fairness for the appellant, a self-represented litigant, by: a) prohibiting the appellant from cross-examining Dr. Rassouli-Rashti on his professional discipline conviction for lying to his disciplinary regulator; and b) refusing to allow the appellant to refer to an outline while testifying.. Reisher v. Westdale Properties [for numbered case cites see main link]
 The appellant’s grounds here challenge the exercise of the trial judge’s trial management powers. Given their discretionary nature, absent error in principle or unreasonable exercise, deference is owed on appeal to trial management decisions: R. v. Samaniego, 2022 SCC 9, 466 D.L.R. (4th) 581, at paras. 25-26. However, erroneous evidentiary rulings and trial unfairness cannot be justified under trial management. No deference is owed to a trial management decision that amounts to an error in principle or an unreasonable exercise of discretion, or that otherwise renders a trial unfair: Katz v. Zentner, 2022 BCCA 371, at paras. 61-62, 76; R. v. Wesaquate, 2022 SKCA 101, 418 C.C.C. (3d) 225, at paras. 95-96; Ker v. Sidhu, 2023 BCCA 158, at paras. 80-84; Samaniego, at para. 26. Appellate review of trial management decisions requires a contextual approach; it is important to consider them in the context of the trial as a whole, rather than as isolated incidents: Samaniego, at para. 26.
In Reisher v. Westdale Properties (Div Court, 2023) the Divisional Court reviews the legislative role of the LTB and reinforces it's high-volume procedures:
The Landlord and Tenant Board. Papouchine v. Touram LP d.b.a. Air Canada Vacations
 Before entering into the analysis of the issues in this appeal, it is worthwhile to consider the role the Landlord and Tenant Board plays within the legislative scheme that addresses the relationship of tenants and landlords. The legislation recognizes that relative power within this relationship favours the landlord. The legislation is designed to bring that foundational aspect of the relationship closer to balance:
The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes. This is accomplished in part through substantively favouring tenants, as in s. 83 where the Board is required to refuse an order of eviction unless, having regard to all the circumstances, it determines that it would be unfair to refuse to do so. But as already noted and as the Act also prescribes, the adjudication of disputes is to be provided within the framework of regulation that attempts to balance the rights of tenants and landlords. Absent this prescription the position of landlords would be superior to that of most tenants. As a general rule, landlords are more likely to have the resources and ability to retain counsel and whatever other experts are required. Many tenants cannot. A loosening or broadening of the rules generally applicable in court, applicable to both sides, serves to bring increased balance to the way in which these disputes are adjudicated and resolved. It is the Landlord and Tenant Board that sets the rules that govern the procedures and practice applicable to the hearings it conducts.
 The need for a broader, less structured approach, is underscored by the nature of the task. The Landlord and Tenant Board, appropriately describes itself as a high-volume tribunal. It received 61,586 applications and 2,452 requests for review in the 2021-2022 fiscal year. These numbers require it to adopt procedures that, while providing an adequate opportunity to understand the issues and for both parties to be heard, allows for expedition. Vavilov notes that not all Boards can be expected to produce reasons with the degree of exactness required of the courts:
Administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge — nor will it always be necessary or even useful for them to do so. Instead, the concepts and language employed by administrative decision makers will often be highly specific to their fields of experience and expertise, and this may impact both the form and content of their reasons. These differences are not necessarily a sign of an unreasonable decision — indeed, they may be indicative of a decision maker’s strength within its particular and specialized domain. “Administrative justice” will not always look like “judicial justice,” and reviewing courts must remain acutely aware of that fact.
The reviewing court must also read the decision maker’s reasons in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body. This may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency.
In Papouchine v. Touram LP d.b.a. Air Canada Vacations (Div Court, 2022) the Divisional Court [Corbett J] comments on scarcity of tribunal resources as justification for an HRTO order limiting frivolous procedures:
 Tribunals, like courts, are custodians of a scarce public resource: time before the tribunal. Meritorious complaints cannot proceed promptly if frivolous complaints clog the system and waste resources. Some tribunals, including the Tribunal, do not charge fees to initiate and pursue a complaint, and some do not order legal costs in favour of unsuccessful parties. These practices facilitate access to justice, but they may also create a false impression that justice is “free” and that there are no constraints on matters that may be brought forward for adjudication.. Speck v. OLRB
 Justice is not free. Quite the contrary. Justice is expensive. To the extent that the cost of justice is not borne by the parties, it is borne by the public purse. Tribunals, like courts, are responsible for overseeing their own processes so that public resources are applied effectively to matters worthy of adjudication. To achieve this, tribunals, like courts, must control their own processes, including restraining vexatious conduct and abuse of process.
In Speck v. OLRB (Div Ct, 2021) the Divisional Court considered a judicial review of an OLRB duty of fair representation case. One of the issues was procedural fairness where the appellant had filed 1300 pages of material:
 While the applicant felt that his original filing was well-organized and necessarily compendious, the Board found it to be “generally incomprehensible and difficult to follow,” and pointed out that such a document made it impossible for the Union “to discern the specific allegations against” it. Such a finding, in the applicant’s view, was “completely unfounded.”. Abara v. Hall and Lee
 We disagree. The Board’s concerns were reasonable, given the nearly 1300 pages of application and exhibits that the applicant had filed. In fact, they were guided by the Board’s duty of procedural fairness to the Union to permit it to understand the allegations that it must answer, the factual basis for the allegations, and the remedies sought. The Board had the authority to set page limits that required the applicant to focus his arguments and render them more manageable for response and argument. In making its interim determination, the Board was balancing its duties to accord procedural fairness to all parties. The Board’s interim decision did not bar the applicant from applying for relief. It merely imposed on the applicant a duty to provide a more concise application. The applicant complied with the interim decision. Once that application was filed, the responding parties promptly filed responses.
 The applicant further complains that the page limitations emasculated his application and placed him “in the near-impossible position” of describing six years of evidence within the required page limits without sacrificing relevant material.
 We do not agree that the applicant suffered unfairness in that regard as a result of the interim decision. The applicant’s application ultimately did not proceed as a result of the Board’s decision not to inquire into it because of undue delay. Given that determination, the applicant cannot show any unfairness or prejudice that he suffered as a result of the page limits that were imposed: Kuehne + Nagel Ltd. v. Uniform, 2019 ONSC 6779, at para. 7.
 Substantive rights are often subordinated to procedural requirements in a system of justice, and a substantive right does not trump every other concern in the justice system: Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62,  3 S.C.R. 176, at paras. 160-162. All parties who seek redress before the Board – employers, unions, and workers – are subject to the same presumption with respect to delay, and non-unionized workers must likewise comply with limitations periods set out in other fora. One fundamental purpose of the Act is to promote “the expeditious resolution of workplace disputes” in pursuance of which the Chair of the Board may make rules governing practice and procedure: Act, ss. 2(7), 110(7).
In Abara v. Hall and Lee (Div Court, 2022) the Divisional Court considers the 'statutory scheme' Baker factor for administrative fairness, here finding that the LTB had truncated a normally 'high-volume tribunal' hearing to the prejudice of the LL:
 In determining whether the standards of procedural fairness had been met, Baker v. Canada (Minister of Citizenship & Immigration).5F enunciated a non-exhaustive list of five factors:. Vaitheeswaran v. State Farm Mutual Automobile Insurance Company
(1) the nature of the decision being made and the process followed in making it; As set out above, the statutory scheme is relevant. Section 183 of the RTA requires the LTB to utilize “the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter.” The LTB is a high-volume tribunal with limited time allocation for hearings.
(2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
(3) the importance of the decision to the individual or the individuals affected;
(4) the legitimate expectations of the person challenging the decision; and
(5) the choices of procedure made by the agency itself.
 In this case, even though these applications are normally done in writing, the LTB directed an oral hearing lasting 15 minutes since the positions of the tenants differed.
 The transcript of the hearing shows the Member did not provide the appellant with the opportunity to put forth his full argument specifically dealing with the date of termination, which would have an impact on the request for compensation even though that needed to be addressed in a different process. The hearing lasted no more than 3-5 minutes. The appellant was interrupted numerous times. Without permitting any submissions from the appellant on termination date, the Member determined that the termination date was September 15, 2021. Although no compensation was available in that specific application, the date may have an impact on the entitlement to compensation through other processes.
 On review, Member Mulima recognized there was a concern with regard to the issue of the termination date and the appellant’s request for compensation. At paragraph 8, Member Mulima stated:
The Landlord argues that the termination date should have been determined to be July 31, 2021, therefore granting him an “overholding penalty” for rent after that date to the date the Tenants vacated the rental unit. As set out below, the Residential Tenancies Act, 2006 (‘Act’) does not permit such a penalty and as a result, there is no prejudice to the Landlord, and no material impact on the outcome of the case, in the Member determining the tenancy terminated on the date the Tenants granted vacant possession of the rental unit to the Landlord. The difficulty I have with this conclusion by Member Mulima is that it does not recognize that there could be other consequences to the date of termination. The transcript is clear that the appellant was not given any opportunity to make any submissions on the date of termination. Though there was written material put forth at the hearing, the Member determined that there was no jurisdiction for the compensation claim and ended the hearing on that issue, yet still made a finding about the date of termination.
 The compensation claims of the appellant encompassed various claims including overholding from July 2021 and costs for the tenant not returning the key. The characterization by Member Mulima that the claim was for an “overholding penalty” highlights that there was no opportunity for submissions on the substance of the appellant’s claim and no hearing on the date of termination. The conclusion that the appellant did not suffer “prejudice” is not borne out by the record.
 The appellant, in my view, was entitled to a fair opportunity to make submissions about the date of termination and was not provided that opportunity. I do recognize that the LTB is a high-volume tribunal. But for the LTB to conclude on a significant finding—the termination date of the lease—without providing the appellant with the opportunity to address that issue, was, in the circumstances of this case, a breach of procedural fairness.
In Vaitheeswaran v. State Farm Mutual Automobile Insurance Company (Div Court, 2022) the Divisional Court denies an administrative fairness argument that the tribunal had unfairly restricted the appellant's "length of submissions" and refused "entertain new arguments", on the basis that "(a) limit on new claims and arguments in such circumstances was designed to prevent unfairness in the process and to manage the Tribunal’s resources":
 With respect to the Appellant’s assertion that she was denied procedural fairness, principally by the limit placed by the Adjudicator upon the length of submissions and the refusal to entertain new arguments on reconsideration that had not been raised at the hearing, I see no breach of procedural fairness that would warrant interference with her decision. The Adjudicator’s management of the process was well within her discretion and was clearly designed to require focussed submissions in the context of a complex Catastrophic Impairment claim. A limit on new claims and arguments in such circumstances was designed to prevent unfairness in the process and to manage the Tribunal’s resources, considerations that are well within the discretion of the Adjudicator’s discretion to achieve by the controls imposed by her (see: Iqbal v. Gore Mutual Insurance Company, 2021 ONLAT 20-005901/AABS).